Copyright © 1995 Ian Leigh
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.
The recent decision of the House of Lords in R v Secretary of State for the Home Department, ex parte Fire Brigades Union  2 WLR 464 raises important constitutional questions about the extent to which the government is required to seek Parliamentary approval for its policies or may rely instead on prerogative powers. This note considers the implications of the ruling that the Home Secretary acted unlawfully in introducing a revised criminal injuries compensation scheme under the prerogative power, rather than implementing the statutory scheme under the Criminal Justice Act 1988.
It is argued that the House of Lords reached the right decision, but for the wrong reasons.
Parliamentary criticism of the Home Secretary's plans proved ineffective, and an amendment to the Criminal Justice and Public Order Bill 1994 to compel the introduction of the 1988 Act scheme was defeated. However, for reasons best known to itself, the government did not make use of the opportunity of that Bill to repeal the unimplemented scheme either. The curious state of arrested, pre- natal, development in which the law had been left - unimplemented but unrepealed - was to prove the Home Secretary's undoing when the battle shifted to the courts.
The applicants in the Fire Brigades Union case argued that introduction of a new non- statutory scheme was unlawful in the sense either that the minister was in breach of the provisions for the introduction of the 1988 scheme, or that the existence of the unimplemented, but unrepealed, statutory scheme prevented the introduction of a wholly different scheme. Not surprisingly, since it involved fundamental constitutional considerations, the issue divided both the Court of Appeal and the House of Lords' appellate committee, although a majority in each court held the Home Secretary's action to be unlawful. The division of opinion centred upon which of two alternative formulations should be adopted. Either the case could be understood as an attack on the (non-)use of the Home Secretary's power to make a commencement order under the Criminal Justice Act 1988, s 171. Or it could be understood as being concerned with limiting the prerogative power to introduce a new scheme, because of the existence of unimplemented amending legislation. Broadly, the second was the view taken by the majority in the Court of Appeal (R v Secretary of State for the Home Department, ex parte Fire Brigades Union and Others  1 All ER 888), while the majority in the House of Lords ( 2 WLR 464) preferred the first approach. A majority of the Court of Appeal held that the commencement section created no enforceable duty in the Home Secretary to bring the legislation into force at any particular time (Sir Thomas Bingham, MR dissenting holding that it created a qualified duty, but that there had been no breach on the facts). However, a different majority held (Hobhouse LJ dissenting) that the Home Secretary had acted unlawfully in using the prerogative to introduce the new scheme since the 1988 Act suspended the prerogative in this area. Both points were cross-appealed to the House of Lords. Their Lordships held (following Hobhouse LJ's dissenting judgment) that the prerogative was not suspended since the relevant provisions of the Act were not in force. They agreed also that the Act created no enforceable duty to bring it into effect. However, a majority held (Lords Keith and Mustill dissenting) that the Home Secretary was under a duty to keep implementation of the Act under consideration and that the announcement in the White Paper, together with the introduction of new scheme, were an unlawful renunciation of this power, which would be quashed. This note will examine each approach in turn.
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The more difficult question is whether the facts raised a question concerning the suspension of the prerogative by statute. If the 1988 Act had been in force then clearly, under the well-known rule in AG v De Keyser's Royal Hotel Ltd.  AC 508, the Act would have been taken to have suspended the prerogative power to introduce further compensation schemes for victims of crime at variance with the statutory scheme. On the other hand, if the Act had never been passed, the prerogative would have been available to introduce an amended scheme, subject to judicial review of the provisions of the scheme. That the scheme was subject to judicial review was accepted by the Court of Appeal in R v CICB and another, ex parte P and another  1 All ER 870 (an unsuccessful attempt to review the substance of the new scheme on grounds of irrationality); in practice a challenge of this type would be unlikely to succeed, unless there was clear bad faith. The facts in the Fire Brigades Union case fell somewhere between the two poles. The majority in the Court of Appeal extended the De Keyser's principle by analogy, whereas the House of Lords held that the doctrine could not operate until the legislation was in force (see Lord Keith of Kinkel  2 WLR at 467, Lord Browne-Wilkinson, ibid., 475, Lord Mustill, ibid., 485, and Lord Lloyd of Berwick, ibid., 493). The Lords' decision in effect treats the prerogative as a source of law equivalent to legislation: it can only be repealed by later legislation which is itself in force. This is appealing on grounds of symmetry and logic, but can be criticised as an overly mechanical approach, which attributes more clarity and certainty to prerogative power than is justified. Although it may be too late to create new prerogatives, the exact scope of many prerogative powers remains wholly unclear until litigated. In effect, therefore, as a source of law, the prerogative is given a latent potential which greatly exceeeds that of unimplemented (but precise and detailed) statutory provisions.
Part of the problem is that the ratio of De Keyser's itself is unclear (for earlier discussions of the difficulties see: Markensis 1973, 299-307; Munro 1987, 169-172. In that case the House of Lords held that the Crown was not entitled to fall back on the prerogative when requisitioning land during the First World War; instead it was bound by statutory provisions under which compensation was payable. However, the speeches contain three noticeably different versions of why the relationship between the prerogative and statute should produce this result. The narrowest was that of Lord Parmoor, who argued that when Parliament has placed statutory limits on a prerogative exercisable by the executive which interferes with property or the liberty of subjects, those limits are binding in favour of the subject ( AC at 585). However, this view would suggest that a different approach is open where the prerogative in question does not interfere with the subject or confers a benefit (such as a payment of compensation) rather than a restriction of liberty. It has in fact been used in this way to suggest that a statute should not eclipse the prerogative where there is no attempt under the prerogative to deprive the subject of rights (Hobhouse LJ  1 All ER at 906; and cf. Purchas LJ in R v Secretary of State for the Home Department, ex parte Northumbria Police Authority  1 All ER 556, 571). However, the problem with such an approach is that where the prerogative confers a benefit but the statute confers a greater one, for the Crown to rely on prerogative produces a net detriment; in other words the comparison ought to be between the position under the prerogative and that under statute, not with some hypothetical situation in which the statute is taken not to exist. The second view from De Keyser's is that most commonly cited - that of Lord Atkinson, that when a statute is passed and is in force (Lord Atkinson is the only one of their Lordships to mention the Act being in force) the prerogative power is in abeyance, because the Crown has assented to the Act and is bound by it ( AC 508). This view supports the approach taken by Hobhouse LJ in the Court of Appeal and by the House of Lords in the Fire Brigades Union case. The third approach (of Lords Dunedin and Sumner, ibid., 526 and 561-2) is wider and could justify the approach of the Court of Appeal: their Lordships laid emphasis on the fact that where under the statute the Crown has sought and obtained additional statutory powers to do the same thing or something wider than that permitted by the prerogative, it cannot then choose to exercise the prerogative instead.
Clearly, although De Keyser's concerned legislation which was in force, it requires only a minor extension of this third approach to apply it to powers which the Crown has obtained but chosen not to bring into effect, as with the 1988 Act. It was on this basis that Morritt LJ in the Court of Appeal held that the prerogative was abridged ( 1 All ER at 911). Sir Thomas Bingham MR, on the other hand, regarded the De Keyser's doctrine as limited to substantive statutory provisions which were in force. However, he reached the same conclusion as Morritt LJ by reasoning from first principles: due respect to legislative supremacy required that the prerogative should be treated as abridged in the face of an enduring and unrepealed statement of Parliament's will ( 1 All ER at 896).
This highlights the fundamental questions about the legitimacy of alternative forms of law-making in a representative democracy which lie at the heart of the dispute. In the words of Sir Thomas Bingham MR, legislation is 'the most solemn form for which constitution provides' ( 1 All ER at 896). The broad principle that the government should not be free to obtain legislation from Parliament on the understanding that it will be used and then to decide unilaterally that it will not, is surely unimpeachable, even within the impoverished British versions of the rule of law and the separation of powers (cf. Lord Mustill  2 WLR at 487-8). Although of fundamental importance, the implications are in a sense procedural: a requirement that a government which changes its mind should at least seek amending legislation before introducing changes. Normally, of course, it will be required to do so by the absence of legal authority for its new position. It is fairly common, for instance, after a change in government for unimplemented legislation at variance with the new government's policies to be first moth-balled, and then repealed. Where the power in question is a prerogative one this formality may be avoided. Although it may be a formality, it is an important one, on grounds of the enhanced scrutiny, public debate and legitimacy which legislation enjoys within a democracy when compared to use of the prerogative. These are strong arguments for codifying prerogative powers wherever possible. They are stronger still when codifying legislation has in fact been passed. In these circumstances to resort to the prerogative rather than amending legislation is strongly indicative of executive ennui with the democratic niceties.
This analysis suggests that judges who see their role as buttressing Parliamentary government ought, whenever possible, to give a restricted reading to the prerogative, and so force the executive to use the better (if more circuitous) route for implementing its policies. In the great constitutional battles of the seventeenth century the use of the prerogative by the Stuart monarchs to avoid inconvenient legislation was one of the abuses which culminated in the declaration in the Bill of Rights against the suspension of statutes. The inter-action between prerogative and statute is less a matter of constitutional crisis in current circumstances, not least because the prerogative is exercised by a government minister responsible to a Parliament elected through universal franchise. Nevertheless, the issues for the rule of law are fundamentally the same. The principle of legality demands that statutes cannot be set aside on a discretionary basis by the Crown. Generally speaking, the modern trend is towards increasing review of the prerogative as the road from Lain to Bentley, via Laker, GCHQ and Everett shows (respectively: R v Criminal Injuries Compensation Board, ex parte Lain  2 Q.B. 864; R v Secretary of State for Home Department, ex parte Bentley  QB 349; Laker Airways v Department of Trade  QB 643; Council of Civil Service Unions v Minister for the Civil Service  AC 374; R v Secretary of State for Foreign and Commonwealth Affairs ex parte Everett  QB 811). However, the Fire Brigades Union case is now the second missed opportunity in recent years to limit the prerogative by an expansive reading of the De Keyser's rule. The first was in the Northumbria Police case where the Court of Appeal created some confusion in holding that the Home Secretary possessed concurrent powers to issue CS Gas rounds to the police under the prerogative of preserving the peace of the realm and under the Police Act 1964 - the statute was said not to eclipse the prerogative since it did not purport to create a monopoly of power ( R v Secretary of State for the Home Department, ex parte Northumbria Police Authority  1 All ER 556; criticised in Bradley, 1988). An alternative, and far preferable, approach would have been a cautious reading of the prerogative wherever a statute arose in the same field, thus forcing the executive to claim from the legislature specific authority to preserve the prerogative power where necessary.
Similarly, in the Fire Brigades Union case the approach advocated by the majority in the Court of Appeal would not have necessarily frustrated the executive. Instead, specific legislation would have been required to repeal the 1988 provisions and, at the very least, resuscitate the prerogative or, better, to place the new scheme on a statutory basis (a course of action which the government were contemplating in the longer term in any event). None of this is burdensome to the business of government. More generally, a ruling along these lines would have shifted the onus so that an express preservation of the prerogative pending commencement of the statutory provision would need to be included in statutes, where that was the intention. Parliament already speaks in this way where it wishes to retain the prerogative in the face of new (implemented) legislation occupying the same field (see, for instance, the Immigration Act 1971, s 33), thus over-riding the effect of the De Keyser's doctrine. The situation would then have been similar to that which applies on the repeal of a statute: under the Interpretation Act 1978 s 16(1), the common law (presumably including the prerogative) does not revive on the repeal of legislation, unless expressly stated. This provision appears to have been overlooked by writers who, following the older judgments, have argued that the prerogative is temporarily superseded during the life of a statute to revive, like Sleeping Beauty, on its repeal. The Interpretation Act suggests that the inter-relationship betweeen these two sources of law is not reducible to a simple assertion that the prerogative is only suspended by a statute in force. However, if the Act can be taken as a broad statement of Parliament's will on the repeal of inconsistent legislation, it is, admittedly, silent on the effect on the prerogative between Royal Assent and commencement.
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Unlike the courts, Parliament is not spared moot law-making. Among the range of commencement formulae commonly employed by those who draft legislation, are several which can result in protracted delay in implementing legislation. From Parliament's point of view the most certain are commencement on the Royal Assent (which, in the absence of any indication to the contrary, is the rule under under the Interpretation Act 1978, s 4) or specifying an appointed day in the Act. More common is a provision along the lines of the Criminal Justice Act 1988 s 171(1) providing that the sections come into force ' on such day as the Secretary of State may ... appoint'. This allows for flexibility, giving time for necessary administrative changes and for the law to be introduced according to political expediency. However, how far does the discretion extend? Is it correct to argue (as did counsel for the unions) that while the minister has discretion over when the commencement order is laid, there is none as to whether it will be? Or are the uncertainties of political life so deep that words like those in s 171(1) confer a discretion wide enough to include the possibility of non- implementation? Bennion has argued that whether the formula in the commencement section is mandatory or permissive, the presumption in each case should be that Parliament's intention is that the whole Act should be brought into force, and that failure to do so should be amenable to judicial review (Bennion 1992, 185-6).
A variety of different interpretations of the effect of the wording used in the commencement section appear in the judgments. Taking the Court of Appeal and House of Lords' judgments together, a majority of judges stated clearly that the section imposed no enforceable duty to implement the legislation. Only two judges departed from this approach: Lord Keith argued that if there was a duty it was not owed to the public but to Parliament ( 2 WLR at 466), and Sir Thomas Bingham MR, argued that there was a duty but it was flexible enough to allow for delaying implementation of the statutory scheme on financial grounds ( 1 All ER at 895). However, all the Law Lords, found in s 171 a different type of duty, which the majority found that the Secretary of State had breached - a duty to keep implementation of the Act under consideration. For Lords Browne-Wilkinson ( 2 WLR at 473 ff.), Lloyd (ibid., 492), and Nicholls (ibid., 495-6), the Home Secreatry had acted unlawfully in renouncing the power to implement the statutory scheme in advance of its repeal. The dissenting Lords saw the situation differently: Lord Mustill did not see the announcement as a permanent abandonment of the power (ibid., 486) and Lord Keith argued, once again, that the duty to consider was not legally enforceable, but was owed to Parliament (ibid., 468). The key questions to be considered are the reasons for the reluctance to find a clear duty to implement the legislation in s 171, and whether a duty to keep the matter under review amounts to a coherent alternative approach.
Just as, following the GCHQ case, not all prerogative powers are equally reviewable, so it can be argued that statutory powers should be approached differently according to the subject matter. The exercise of some is more politically sensitive than others and, although the courts seldom explicitly state it, this factor surely features in many judicial review decisions. Governmental financial decisions are among the most sensitive: a factor which clearly underlies, for example, the poor success rate of local authorities in challenging central grant allocation and capping powers. The reason for judicial reluctance to intervene is obvious: governmental decisions reflecting financial priorities cannot be undone piecemeal; therefore, a judicial determination that one spending (commonly, cost-cutting) decision is unlawful will often have widespread implications in upsetting a delicate balance of other compromise decisions, which are beyond the scope of the litigation (see, for example, the recent decision of the Court of Appeal in R v Cambridge Health Authority ex parte B  1 WLR 898). In another action for judicial review brought to challenge the new criminal injuries compensation scheme, Neill LJ referred explicitly in this context to the academic literature on polycentric decisions in support of non-intervention: R v CICB and another, ex parte P and another  1 All ER 870, at 857. This was also a significant factor in the Fire Brigades Union case, with several judges recognising the need for government flexibility over the implementation of legislation in the light of changing economic circumstances (Hobhouse LJ  1 All ER at 901, Sir Thomas Bingham MR, ibid. 894-5; Lord Keith  2 WLR at 467; Lord Mustill, ibid., 482-3; Lord Nicholls, ibid., 494-50).
In the same way, it can be argued that decisions about the implementation of legislation are peculiarly sensitive. Not all statutory enabling powers are equal. The power to lay a commencement order is not merely on a par with statutory powers to issue licences and serve statutory notices. Although the source of the power may be indistinguishable from that authorising any other kind of statutory instrument, in practice the issue is of a different political order. Several judges spoke explicitly of the need not to trespass upon on so sensitive an area of Parliamentary competence. Parliamentary sanction was the approach preferred by Lord Keith, who argued that the decision over the implementation of the statutory scheme was 'of a political and administrative character quite unsuitable to be the subject of judicial review by a court of law' which would be 'a most improper intrusion into a field which lies peculiarly within the province of Parliament' ( 2 WLR at 466-7). Lord Mustill, invoked the separation of powers to the same effect (ibid., 488):
". ...Parliament has its own special means of ensuring that the executive in the exercise of its delegated functions, performs in a way which Parliament finds appropriate. Ideally, it is these latter methods which should be used to check executive errors and excesses; for it is the task of Parliament and the executive in tandem, not the courts, to govern the country. In recent years, however, the employment in practice of these specifically Parliamentary remedies has on occasion been perceived as falling short, and sometimes well short, of what was needed to bring the performance of the executive into line with the law, and with the minimum standards of fairness implicit in every Parliamentary delegation of a decision-making function. To avoid a vacuum in which the citizen would be left without protection against a misuse of executive powers the courts have had no option but to occupy the dead ground in a manner which, and in areas of public life, which could not have been foreseen 30 years ago. For myself, I am quite satisfied that this unprecedented judicial role has been greatly to the public benefit. Nevertheless, it has risks, of which the courts are well aware. ....some of the arguments addressed would have the court push to the very boundaries of the distinction between court and Parliament established in, and recognised ever since, the Bill of Rights 1689...."
These arguments mirror those employed by the House in the past: for instance, as a reason for non- intervention in relation to alleged fraud in the promotion of private legislation (Pickin v BRB  AC 765), and by Lord Scarman in relation to the parliamentary affirmative resolution procedure for approving delegated legislation (Nottinghamsire County Council v Sectretary of State for the Environment  2 WLR 1, 5-7 (criticised in Himsworth 1986)).
The only safe constitutional ground on which a UK court may approach a question of this sensitivity is by way of an attempt to find Parliament's intention, with the object of upholding Parliamentary sovereignty. Many cases appear in the law reports in the shadow of unimplemented legislation without that being a reason for the judiciary to anticipate the effect of the new law: indeed in a certain sense to bring law into effect before Parliament has sanctioned could be said to be a denial of parliamentary sovereignty (see Bridge 1972, for an argument against according anticipatory effect to legislation).
However, equally, curtailment of the minister's discretion can be seen not to be a limitation on the legislative power as such. Indeed it can be interpreted as the reverse - protecting parliamentary sovereignty from executive abuse or neglect. Certainly, there had been several opportunities to repeal or amend the 1988 provisions in Criminal Justice Bills in the intervening years, which had not been taken, but, on the other hand, an amendment to require the minister to bring the scheme in to effect had been defeated in 1994. What is surprising is that in this instance the House of Lords made no use of their new-found ability to have recourse to parliamentary debates under Pepper v Hart  1 All ER 42, to establish whether there was any indication in Hansard about the intention to bring the compensation scheme into force.
Constitutional abhorrence at the thought of issuing an order of mandamus to lay a commencement order clearly weighed heavily with Lord Mustill ( 2 WLR at 483):
"For the courts to grant relief of this kind would involve a penetration into Parliament's exclusive field of legislative activity far greater than any that has been contemplated even during the rapid expansion of judicial intervention during the last 20 years."
Lords Keith (ibid., 466), Browne-Wilkinson (ibid., 472), and Nicholls (ibid., 495) took the same approach. This contrasts with the creativity with which new remedies have been fashioned where necessary to give effect to EC law: for example, the invention of an order 'disapplying' a statute in R v Secretary of State for Transport, ex parte Factortame Ltd. (No.2)  3 WLR 818. One possibility here would have been to issue mandamus but allow a delay to enable the government to obtain legislative repeal or reform of the provisions if it so wished, and was able to obtain the necessary Parliamentary majority. If it was unable to do so, this would suggest that the courts were, after all, following Parliament's will. Moreover, if the prospect of such an order is so dreadful, Parliament could in future give judge-proof commencement order enabling provisions. To put the onus that way around would, it is submitted, strengthen Parliamentary sovereignty by encouraging real debate and consideration of the powers granted to the executive over the commencement of legislation.
The approach of the majority in the House of Lords can also be criticised for the unreality of the distinction between ministerial repudiation of statutory powers and inordinate delay in their use. By way of an (admittedly extreme) example, consider the Easter Act 1928 s 2(2), which provides for commencement by order; no order has been made, some 67 years after the Act reached the statute book. Even allowing for a cautious review of all the available options in the light of changing circumstances, it seems unlikely that commencement of the Easter Act is a matter under active review in Whitehall. Although no formal announcement may have been made of its abandonment, the power lies unused and long-forgotten, behind a file on the top shelf of a dusty office at the end of a long corridor on the ninth floor, of the Calendar (Policy) Section of the Ministry of Time. If the courts seriously follow the idea that ministerial discretion to lay a commencement order cannot be fettered or abandoned, they will inevitably be drawn into considering what constitutes a reasonable delay in implementing legislation. It remains to be seen whether the executive response will be more ingeniously drafted commencement provisions in an attempt to foreclose possible challenge.
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Ultimately, the reasoning in the majority speeches in the Lords turns on a very narrow point - a slipshod pronouncement in a White Paper. If instead the Home Secretary had said that new scheme was interim (for a specified or unspecified period) then his action would have been held to be lawful; indeed this was the approach of Lord Mustill, dissenting,  2 WLR at 486, who argued that the announcement came to much the same thing by implication. However, we may be sure that no Permanent Secretary will ever allow to be repeated such an unguarded constitutional faux pas as that made in the name of Mr. Howard. If it is limited to ministerial statements made on plans for legislation, the Fire Brigades Union decision is, therefore, likely to be unique. Moreover, if the sole outcome is more guarded ministerial language, the decision will have done nothing to enhance Parliamentary scrutiny of executive action or of legislation. The majority of the House of Lords would have done better to follow the bold lead of the Court of Appeal to hold that the rule in De Keyser's could be extended to prevent the exercise of the prerogative in the face of inconsistent, unrepealed, legislation, whether in force or not.
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